Wednesday, February 25, 2015

The Arkansas legislature (with strong Republican majorities) has passed, and the Governor has allowed to become law without his signature, SB 202 "the Intrastate 30 Commerce Improvement Act," which basically freezes the number of categories that can appear in any non-discrimination statute in the state to the categories that appear in the state code. Surprise, surprise "sexual orientation" and "gender identity" do not appear in the state code and thus can not be categories of anti-discrimination anywhere in Arkansas. If a local jurisdiction did have such a statute, SB 202 voids it and prevents any local ordinances with new categories in the future.

Recalling Colorado’s fatally flawed Amendment 2, which years ago explicitly targeted lesbians, gay men and bisexuals (and not heterosexuals), many are asking whether SB 202 is a similarly unconstitutional denial of equal protection. When the Supreme Court struck down Amendment 2 in Romer v. Evans, it underscored that the case record revealed anti-gay “animus” propelling the popular vote and no legitimate government reasons for precluding local nondiscrimination protections for LGBT people, and for no one else.

The sponsors of SB 202 have used sweeping language that raises many legal questions but the bill amounts to a transparent attempt to hide from the courts the blatantly discriminatory reason why it was adopted. This law and other unacceptable ones like it intentionally harm LGBT people and other minority group members. When it can be shown that a law has been passed to facilitate discrimination, that showing creates a presumption that the law is unconstitutional. There is nothing but discriminatory intent here. And no valid public interest can possibly be served by allowing private businesses to discriminate based on sexual orientation, gender identity or other characteristics that might be covered by local ordinances.

One of the legally and pragmatically wrong-headed things about this bill, which business and community leaders have been stressing to Governor Hutchinson, is that local governments are supposed to be independent “laboratories of experimentation.” Local control allows policies to be tested, with the good ones proving their worth and the bad ones failing. In many states where state-level nondiscrimination laws now protect LGBT people, those laws passed following local equal opportunity ordinances. People in those communities saw for themselves that those local ordinances created no problems for businesses, but instead had positive impacts — expressing a welcoming, safe and responsible environment for everyone. SB 202 seeks to kill that time-tested process, aiming to make it that much harder to ensure fair treatment for LGBT people throughout the state.

President Obama!

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